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Software & Patents: "Linus Is Wrong," Says UK Lawyer

"Any talk of..a floodgate of spurious patents is nonsense," contends John Collins

John Collins, a partner at UK firm Marks and Clerk, which describes itself as "the UK's leading firm of patent and trade mark attorneys," has issued a statement in response to the public letter signed by Linus Torvalds in November 2004 which called on the EU Council to refrain from adopting its Software Patent Agreement of May 2004.

"Linus Torvalds...has recently made a statement claiming that the Directive would broaden the area in which patents would be granted. This is simply a false assumption," Collins says in the statement.

"The original [EU] proposal was solely designed to clarify and unify existing practice in the EU," explains Collins. "However, the current version - as a result of amendments made by the European Parliament - will result in patent holders in certain areas losing a significant element of protection meaning that some existing patents will become worthless."

According to Collins, Torvalds and his supporters - the letter to the EU was co-signed by Monty Widenius, the CTO of MySQL, and Rasmus Lerdorf, the original author of the PHP scripting language - lack a fundamental understanding of intellectual property rights "as they seem to be unaware that copyright can only protect software code, and not software inventions."

Allowing for patent protection on software inventions is a requirement of the World Trade Organisation's TRIPS agreement which states that patents must be available in all fields of technology, says Collins.

He continues:

"Moreover, the open source community believes that software can be entirely separated from mechanical and electronic inventions. In reality there is no neat dividing line and the Directive seeks to provide as much clarity as possible. For instance, there are many digital processing innovations which lie at the heart of technology such as digital television or MRI scanners, or where software has made improvements to existing technologies such as X-ray imaging.

Few would argue that these applications of software innovation do not qualify as a 'technical contribution' - one of the basic principles for patent protection.

It has been possible to register software patents in the UK and Europe for over 20 years and so any talk of a potential liberalization which would allow for a floodgate of spurious patents is nonsense."

The Directive, Collins adds, "was originally proposed to provide uniformity in the EU and ensure that all member states took the same approach to the patentability of software inventions so that innovators could be certain that their patents are valid throughout the EU."

Contrary to Torvalds, Widenius and Lerdorf, Collins is adamant: "We should not allow this objective to be undermined."

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